Employer didn't take 'every reasonable effort': Arbitrator
After two leaves were denied, a union grieved the refusals and also the employer’s overall handling of leaves.
Darren Bilinski, a correctional officer who worked at the North Slave Correctional Complex (NSCC) in Yellowknife, requested seven days of vacation leave in April 2016. He wanted time off in July to attend a family gathering in British Columbia.
Bilinski testified he had trouble bidding for the coveted summer time off due to his low-seniority status, so he thought that by requesting leave with three months of advance notice, he would be successful.
Bilinski had made an agreement with Avery Parle, relief correctional officer (RCO), to cover his July shifts. The collective agreement denied vacation leave to officers if four other workers had already booked off vacation time, and that was the case in July 2016.
In denying the leave request, Wayne Jure, NSCC deputy warden, wrote, “Parle is not on schedule to apply a shift exchange and we have five officers off during this time frame.”
(The vacation policy allowed for more employees to book time off for vacation — if operational requirements such as a lesser inmate population allowed for it.)
Parle worked a relief assignment that ended in May, and no further shifts were booked for him, including in July.
On April 19, Chris Potyok, also a correction officer, requested time off for one shift on April 23. Because two other officers booked off for that shift, Potyok’s request was also denied.
The union, Union of Northern Workers, PSAC North grieved the denial on July 8.
Potyok was advised that because one extra staff member was on duty during the shift, he should show up at his regular time, and if nobody else was off, Potyok’s leave would be allowed.
After he arrived at work on April 23, Potyok was told that another officer had called into the office earlier in the day and requested leave and it was granted. Potyok worked his shift, but was allowed to take the final two hours off.
On July 7, the union grieved the decision against Potyok. It had also grieved the policy on June 22, alleging the employer didn’t take “every reasonable effort” to accommodate workers’ leave requests.
Arbitrator Allen Ponak upheld the grievance for Potyok, but denied the policy grievance and that of Bilinski.
“Rejecting Bilinski’s proposal to have RCO Parle cover his shifts was reasonable in the circumstances,” said Ponak.
“Allowing unassigned RCOs to volunteer for shifts or to make separate arrangements to cover shifts for COs would enable some RCOs to have more work opportunities than other RCOs, contrary to the contractual requirement of ensuring equitable allocation of relief opportunities,” said Ponak.
But Potyok was unfairly treated, ruled the arbitrator.
“I find that the employer failed to make every reasonable effort to grant Potyok his vacation leave as requested for April 23. The close proximity of the leave application to the date of the leave should have made operational requirements reasonably predictable, a fact emphasized generally by senior management witnesses,” said Ponak.
“While there is never perfect predictability, four days’ notice, extra staff, and the absence of any evidence of special operational concerns should translate into leave approval.”
The policy grievance failed, said Ponak, because, “one example of the misapplication of the policy cannot not lead to a general conclusion that the policy has been inconsistently applied. The union would have had to provide substantially more evidence of inconsistent application to meet its onus and overturn the ad hoc vacation leave policy.”
Reference: North Slave Correctional Complex and Union of Northern Workers, PSAC North. Allen Ponak — arbitrator. Rebecca Thomson for the employer. Christopher Buchanan for the employee. Nov. 9, 2017. 2017 CarswellNWT 89
